Full opinion text
TACHA, Circuit Judge. Petitioner Steven Keith Hatch was convicted of two counts of first degree murder in Oklahoma state court. Oklahoma courts twice sentenced him to death and then vacated those sentences. After a third state court judge imposed the death penalty on petitioner, the Oklahoma Court of Criminal Appeals affirmed. Petitioner then sought a writ of habeas corpus in federal district court. After first referring the case to a magistrate judge, the district court denied the petition. Petitioner now appeals, alleging seventeen errors: Sixteen of his claims concern constitutional infirmities in his state court proceedings, and one contends that the federal district court erred in failing to conduct an evidentiary hearing on his habeas claims. We have jurisdiction pursuant to 28 U.S.C. § 2253 and affirm. I. BACKGROUND On October 15, 1979, petitioner and his accomplice, Glen Burton Ake, approached a home in Canadian County, Oklahoma, intending to rob its residents. Ake entered the home under the pretense that he was lost and needed directions. After excusing himself to return briefly to the car, Ake reentered the house with a firearm. Petitioner entered the house as well, also holding a firearm. Once inside, petitioner and Ake bound and gagged three of the occupants: Reverend Richard Douglass, his wife, Marilyn, and their son, Brooks. They ransacked the house, stealing numerous items. They also attempted to rape twelve-year-old Leslie Douglass, Richard and Marilyn’s daughter. Petitioner covered each of the Douglasses’ heads with an article of clothing. Ake told petitioner to return to the car, turn it around, and “wait for the sound.” After petitioner left the house, Ake shot Richard and Leslie twice and Marilyn and Brooks once. Marilyn died from the gunshot wound, while Richard died from the combination of gunshot wounds and strangulation. The two children survived. After this episode, petitioner and Ake left Oklahoma but continued their crime spree. When they learned that the Douglass children had survived, petitioner suggested that they return to Oklahoma and kill them so that there would be no witnesses to the murders. Although petitioner and Ake abandoned this plan, they later journeyed toward Oklahoma City intending to kill the children. They again decided not to follow through. Authorities ultimately apprehended petitioner and Mr. Ake in Colorado. Petitioner’s tortuous trip through the justice system began soon after he and Ake were arrested. Petitioner waived his right to trial by jury. He was tried in the District Court of Canadian County, Oklahoma, by Judge Floyd Martin. Judge Martin found petitioner guilty of two counts of first degree murder and two counts of shooting with intent to kill. After petitioner’s sentencing hearing, Judge Martin found three aggravating circumstances: (1) the murders were especially heinous, atrocious or cruel; (2) petitioner committed the murders to avoid lawful arrest or prosecution; and (3) a probability existed “that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The judge therefore imposed on petitioner two sentences of death for his murder convictions, as well as two terms of forty-five years in prison for his other convictions. Subsequent to petitioner’s convictions but prior to his direct appeal, the United States Supreme Court decided Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Enmund held that the Eighth Amendment prohibited the imposition of the death penalty on any person who did not “himself kill, attempt to kill, or intend that a killing take place or that lethal force ... be employed.” Id. at 797, 102 S.Ct. at 3376; see also Andrews v. Shulsen, 802 F.2d 1256, 1272 (10th Cir.1986), cert. denied, 485 U.S. 919, 108 S.Ct. 1091, 99 L.Ed.2d 253 (1988). On petitioner’s direct appeal, the Oklahoma Court of Criminal Appeals reviewed petitioner’s death sentence in light of Enmund. Hatch v. Oklahoma, 662 P.2d 1377 (Okla.Crim.App.1983) (Hatch I). The court determined that “it [was] necessary for the senteneer to give greater attention to the evidence concerning [petitioner’s] individual participation and intent in the events which culminated in the murder/shootings.” Id. at 1383. It therefore vacated petitioner’s death sentence and remanded the case to the district court “for resentencing not inconsistent with Enmund v. Florida and [its] opinion” in Hatch I. Id. (citation omitted). By the time of the remand, Judge Martin, who presided over petitioner’s first trial, had died. He was replaced by Judge Stan Chatman. Judge Chatman initially ruled that he lacked authority to resentenee plaintiff to death because of Okla.Stat.Ann. tit. 21, § 701.13(E) (West 1983) (amended 1985). In response to Judge Chatman’s ruling, the state sought a writ of mandamus to compel Judge Chatman to conduct a new sentencing hearing. The Oklahoma Court of Criminal Appeals granted the writ and directed Judge Chatman to “conduct a new sentencing proceeding in accordance with 21 O.S.1981, § 701.10 and the directive of [Hatch I ], and make findings of fact and conclusions of law.” Oklahoma v. Chatman, 671 P.2d 56, 57 (Okla.Crim.App.1983) (citation omitted). On resentencing, Judge Chatman found the same three aggravating circumstances that Judge Martin had found. He also noted that the aggravating circumstances outweighed the mitigating circumstances. In addressing petitioner’s individual culpability under Enmund, Judge Chatman stated that “[t]he evidence is supportive ... of a finding that [petitioner] contemplated that a killing was not only possible, but probable, and further that lethal force would probably be employed.” Based on these findings, Judge Chatman sentenced petitioner to death for both of the murders. Petitioner appealed his sentences, asserting two claims. First, he contended that Judge Chatman lacked authority to resentence him under Okla.Stat.Ann. tit. 21, § 701.13 (West 1983) (amended 1985). Second, he argued that the evidence did not justify a sentence of death. The Oklahoma Court of Criminal Appeals rejected petitioner’s arguments and affirmed his death sentences. Hatch v. Oklahoma, 701 P.2d 1039, 1040 (Okla.Crim.App.1985) (Hatch II). The United States Supreme Court denied certiorari. Hatch v. Oklahoma, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). Petitioner then filed a petition for a writ of habeas corpus in federal district court. The district court dismissed the petition. Petitioner appealed, and this court ordered that his appeal be held in abeyance pending petitioner’s exhaustion of his claims in state court. Petitioner then applied for state post-conviction relief in the District Court of Canadian County. Judge Joe Cannon ruled that Judge Chatman should have recused himself from petitioner’s second sentencing proceeding because Judge Chatman had worked for the prosecuting attorney during petitioner’s trial and his first sentencing proceeding. Judge Cannon therefore vacated petitioner’s death sentences and planned a third sentencing hearing. After petitioner unsuccessfully attempted to stay his resentencing, Judge Cannon sentenced petitioner to death once more. The Oklahoma Court of Criminal Appeals affirmed. Hatch v. Oklahoma, 835 P.2d 880, 884 (Okla.Crim.App.1992) 9Hatch III). Petitioner again turned to federal court seeking a writ of habeas corpus. In his petition he asserted seventeen grounds for relief and requested an evidentiary hearing. The district court referred the petition to a magistrate judge, who found no meritorious grounds for granting the writ. The district court, without holding an evidentiary hearing, reviewed the petition and the magistrate’s findings de novo and likewise determined that petitioner’s claims were meritless. Petitioner now appeals to this court. II. PRELIMINARY ISSUES Before turning to the merits, we must demarcate the scope of our review. “The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983); see also Autry v. Estelle, 464 U.S. 1, 3, 104 S.Ct. 20, 22, 78 L.Ed.2d 1 (1983) (per curiam). Although we review legal conclusions de novo, Brewer v. Reynolds, 51 F.3d 1519, 1522-23 (10th Cir.1995), a state court’s factual findings are entitled to a presumption of correctness, 28 U.S.C. § 2254(d); Lujan v. Tansy, 2 F.3d 1031, 1034 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1074, 127 L.Ed.2d 392 (1994). In other words, “[a] federal court may not overturn such [factual] determinations unless it concludes that they are ‘not fairly supported by the record.’” Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam) (quoting 28 U.S.C. § 2254(d)(8)). We review mixed questions of law and fact de novo. Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.1995), cert. denied, — U.S.-, 115 S.Ct. 1972, 131 L.Ed.2d 861 (U.S.1995); Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995). We must also note what issues this case does not present. The state has not claimed that any legal ruling requested by petitioner would amount to a “new rule” that could not be applied retroactively in habeas proceedings. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) (plurality opinion). The state has therefore waived that argument. See Schiro v. Farley, — U.S.-,-, 114 S.Ct. 783, 788-89, 127 L.Ed.2d 47 (1994); Godinez v. Moran, — U.S.-,-n. 8, 113 S.Ct. 2680, 2685 n. 8, 125 L.Ed.2d 821 (1993). The state has also failed to assert that a procedural bar would prohibit this court from reviewing the merits of any issue raised by petitioner. Cf. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991) (holding that when “a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice”). Although a federal court may raise the state procedural bar defense sua sponte, it is not required to do so, see Manlove v. Tansy, 981 F.2d 473, 476 n. 4 (10th Cir.1992), and we decline to do so here, cf. Mansfield v. Champion, 992 F.2d 1098, 1099 n. 2 (10th Cir.1993) (refusing to examine procedural bar sua sponte); Hardiman v. Reynolds, 971 F.2d 500, 505 (10th Cir.1992). Finally, we will only examine claims made by petitioner that relate to the innocence/guilt phase of his trial, his appeal, or his third sentencing hearing. While petitioner alleges two errors in his first sentencing hearing, we agree with petitioner that his current death sentence is the result of Judge Cannon’s decision at the third sentencing hearing, which fully reweighed the aggravating and mitigating circumstances surrounding the murders and evaluated petitioner’s personal culpability under Enmund. Any error stemming from petitioner’s first sentencing hearing is therefore irrelevant to this appeal. III. THE INNOCENCE/GUILT PHASE A. Petitioner claims that, at the innocence/guilt phase of the trial, the court should have considered whether he committed a noncapital offense. He bases his argument on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the petitioner claimed that, although he had participated in robbing the victim, his accomplice had committed the murder. Id. at 629-30, 100 S.Ct. at 2385-87. Under Alabama law, a defendant committed a capital offense if he robbed or attempted to rob and “the victim [was] intentionally killed by the defendant.” Id. at 627, 100 S.Ct. at 2384. Felony murder, however, was a lesser included offense that was not punishable by death in Alabama. Id. at 628, 100 S.Ct. at 2384-85. Despite the petitioner’s claim that he had only committed the offense of noncapital felony murder, Alabama law prohibited the court from issuing a noncapital murder instruction. Id. The jury thus was left with the choice of either' convicting the petitioner of the capital offense (which carried with it an automatic advisory jury sentence of death) or acquitting him. Id. at 629, 100 S.Ct. at 2385-86. The Supreme Court held that this statutory scheme was unconstitutional. Id. at 629, 100 S.Ct. at 2385-86. As the Court later clarified in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), “the jury must be permitted to consider a verdict of guilt of a noncapital offense ‘in every case’ in which ‘the evidence would have supported such a verdict.’” Id. at 610, 102 S.Ct. at 2052. In this case, petitioner was convicted of first degree murder under Okla.Stat.Ann. tit. 21, § 701.7(B) (West Supp.1982) (amended 1989). That section stated that “[a] person ... commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson.” Id. The lesser included offense of first degree murder — second degree murder — is “perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in [section 701.7(B) ].” Id. § 701.8(2). Petitioner has never denied that he committed robbery with a dangerous weapon as defined by Okla.Stat.Ann. tit. 21, § 801 (West 1983). Once the state has established that a defendant used a dangerous weapon in the course of a robbery that results in death, the offense of second degree murder is no longer an option under Oklahoma law. See Foster v. Oklahoma, 714 P.2d 1031, 1039 (Okla.Crim.App.) (“Robbery, the predicate felony in second degree felony murder, cannot be accomplished with a dangerous weapon.”), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). Under those circumstances, the defendant has committed robbery with a dangerous weapon and first degree felony murder. Id. Because petitioner committed the underlying offense to first degree felony murder, there is not “evidence, which, if believed, could reasonably have led to a verdict of guilt of a lesser offense.” Hopper, 456 U.S. at 610, 102 S.Ct. at 2052. Petitioner nevertheless claims that the absence of a lesser included offense option in Oklahoma law is unconstitutional. We do not read Beck or any other case as establishing a constitutional requirement that states create a noncapital murder offense for every set of facts under which a murder may be committed. Instead, Beck and Hopper establish that consideration of a lesser included offense as defined by state law is constitutionally required when the evidence warrants it. See Parks v. Brown, 840 F.2d 1496, 1500-01 (10th Cir.1987), rev’d on other grounds, 860 F.2d 1545 (1988) (10th Cir.) (en banc), rev’d on other grounds sub nom. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). We therefore find no constitutional violation in the state court’s refusal to consider whether petitioner had committed second degree murder. B. State-appointed counsel represented petitioner at the innocence/guilt phase of his trial. While the Oklahoma state trial court appointed one attorney to assist petitioner, it appointed two attorneys as counsel for his codefendant, Mr. Ake. The court also refused to appoint an investigator for petitioner, although one would have been available to him had he been tried in a more populous county. See Okla.Stat.Ann. tit. 19, § 138.6 (West Supp.1988). Petitioner does not allege that he was substantively entitled either to two attorneys or to an investigator. Rather, he claims that providing these benefits to some defendants while denying them from him violates his rights to equal protection under the Fourteenth Amendment. As a threshold matter, we must determine what level of equal protection scrutiny to apply in assessing the challenged state action. “[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (footnote omitted); see also Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 516, 130 L.Ed.2d 422 (1994). Petitioner does not claim that he is a member of a suspect class. Cf. Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (capital defendants are not a suspect class), cert. denied 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987). Thus, if we are to apply strict scrutiny, the challenged state action must implicate a fundamental right. Petitioner contends that OHahoma’s discrepant treatment of criminal defendants with respect to the appointment of investigators and attorneys impinges on his right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) (describing “the fundamental constitutional right of access to the courts”); Carper v. Deland 54 F.3d 613, 616 (10th Cir.1995) (“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.”) (internal quotation marks omitted); Petrick v. Maynard 11 F.3d 991, 994 (10th Cir.1993) (“The Due Process Clause of the Fourteenth Amendment guarantees state inmates the right to adequate, effective, and meaningful access to the courts.”) (internal quotation marks omitted); Tubwell v. Griffith, 742 F.2d 250, 252 (5th Cir.1984) (“It is well-established that access to the courts is a fundamental constitutional right.”). For support, petitioner cites Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). In Griffin, two indigent criminal defendants asked an Illinois state court to provide them with transcripts of their trial proceedings free of cost. Id. at 13, 76 S.Ct. at 588. Under Illinois law, the state paid for transcripts only in capital cases; the court therefore denied their request. The Supreme Court ruled that the state’s refusal to provide indigent defendants with trial transcripts deprived them of adequate appellate review. Id. at 18, 76 S.Ct. at 590. Because the Illinois court system gave meaningful appellate review to those defendants who could afford transcripts but not to those who could not, the state scheme violated the right of indigent defendants to equal protection. Id. at 20, 76 S.Ct. at 591; see also Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963) (holding that when a state does not provide indigent defendants with counsel on direct appeal, “an unconstitutional line has been drawn between rich and poor”). The Court’s decisions in Griffin and Douglas, however, rested on the Due Process Clause as well as the Equal Protection Clause. See Evitts v. Lucey, 469 U.S. 387, 404, 105 S.Ct. 830, 840, 83 L.Ed.2d 821 (1985) (commenting that the denial of free transcripts at issue in Griffin “violated due process principles because it decided the appeal in a way that was arbitrary with respect to the issues involved”); Ross v. Moffitt, 417 U.S. 600, 608-09, 94 S.Ct. 2437, 2442-43, 41 L.Ed.2d 341 (1974) (“The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.”); Dickerson v. Latessa, 872 F.2d 1116, 1120 (1st Cir.1989) (stating that Griffin and Douglas “appear not only to implicate equal protection concerns but also due process safeguards as well”). In contrast, the infirmities alleged by petitioner in this ease do not implicate any due process protections. Petitioner does not claim that he was entitled to more than one attorney, nor does he assert that the assistance of an investigator is necessary to ensure meaningful access to the courts. Cf. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2636-37 n. 1, 86 L.Ed.2d 231 (1985) (no need to address claim of need for investigator “[g]iven that petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial”). Consequently, the state action challenged by petitioner does not infringe on his fundamental right of access to the courts. Strict scrutiny is inappropriate. We will therefore apply the rational basis test. Under the rational basis test, the challenged classifications “bear[s] a strong presumption of validity.” FCC v. Beach Communications, Inc., — U.S. -, -, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993). We must therefore uphold the challenged policies “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at -, 113 S.Ct. at 2101. At the time of petitioner’s trial, Oklahoma law allowed “[t]he district judges of a county [of more than 200,000 persons to] authorize the employment of ... one or more investigators for the office of public defender.” Okla.Stat.Ann. tit. 19, § 138.6 (West Supp.1988) (amended 1991 and 1994). In Eddings v. Oklahoma, 616 P.2d 1159 (Okla.Crim.App.1980), rev’d on other grounds, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Oklahoma Court of Criminal Appeals held that this provision did not violate equal protection principles. Id. at 1164. The court found a rational basis in the state’s decision to staff investigators only in counties of over 200,000 persons “since the larger counties undoubtedly have greater numbers of indigent defendants.” Id. We agree. The Oklahoma legislature could have rationally concluded that hiring investigators only in its largest counties was a sounder and more efficient use of the state’s resources. Under these circumstances, we therefore find no equal protection violation in Oklahoma’s denying petitioner the assistance of an investigator. Petitioner’s second equal protection claim — that it was unconstitutional for the state to assign him only one attorney while his eodefendant Ake received the assistance of two — also fails. In his brief, petitioner acknowledges that the judge assigned two attorneys to Ake because the judge believed that Ake was more culpable and therefore needed additional assistance. We find the judge’s asserted justification for the discrepancy perfectly legitimate and rational. We therefore hold that the disparate treatment between petitioner and his codefendant did not violate petitioner’s right to equal protection under the Fourteenth Amendment. C. Petitioner next contends that he received ineffective assistance of counsel in the inno-cenee/guilt phase of his trial in violation of his Sixth Amendment right to counsel. In his habeas petition, petitioner alleged a multitude of grounds on which his attorney was constitutionally ineffective. Before this court, petitioner also alleges that the federal district court erred in failing to hold an evi-dentiary hearing on the subject. We disagree. The Sixth Amendment guarantees defendants the right to the effective assistance of counsel in state criminal trials. See McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). To prove that counsel was constitutionally ineffective, a defendant must show “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Romero v. Tansy, 46 F.3d 1024, 1029 (10th Cir.1995), cert. denied, — U.S. -, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995); Stafford v. Saffle, 34 F.3d 1557, 1562 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1830, 131 L.Ed.2d 751 (1995). Under the second prong of the Strickland test, a defendant demonstrates prejudice when she shows “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Harris v. Champion, 15 F.3d 1538, 1569 (10th Cir.1994) (quoting the same); United States v. Stevens, 978 F.2d 565, 568 (10th Cir.1992). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As this court has noted before, it is often “easier to dispose of an ineffectiveness claim for lack of prejudice than to determine whether the alleged errors were legally deficient.” United States v. Haddock, 12 F.3d 950, 955 (10th Cir.1993); see also Brewer, 51 F.3d at 1523. Because we believe this to be true in the case at bar — with the exception of petitioner’s contention that counsel was ineffective for advising petitioner to waive his right to a jury — we will examine the prejudice prong for each of his ineffectiveness claims first (except for the one relating to the jury waiver). In analyzing whether counsel’s alleged errors prejudiced petitioner, we must keep in mind the standard to be applied in assessing whether petitioner is entitled to an evidentia-ry hearing in federal court on his ineffectiveness claim. “First, the petitioner bears the burden of ‘alleging] facts which, if proved, would entitle him to relief.’ ” Brecheen, 41 F.3d at 1362 (quoting Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). Moreover, his allegations must be specific and particularized; “[cjonclusory allegations will not suffice to warrant a hearing.” Andrews, 802 F.2d at 1266; see also Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.1990). If the petitioner meets that burden, a federal district court must hold a hearing unless the petitioner “receive[d] a full and fair evidentiary heáring in the state court, either at the time of the trial or in a collateral proceeding.” Brecheen, 41 F.3d at 1363 (emphasis and internal quotation, marks omitted). Petitioner need only meet the first part of the test here because no state court held an evidentiary hearing on .his ineffectiveness claim. Turning to petitioner’s various grounds for alleging ineffectiveness, he first argues that his attorney failed to establish an effective attorney-client relationship. This contention must fail. First, there is no right to a “ ‘meaningful relationship’ between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983); see also United States v. Mitchell, 788 F.2d 1232, 1236 (7th Cir.1986). Second, petitioner has not shown any resulting prejudice. That is, petitioner has failed to put forth any material facts demonstrating that his allegedly poor relationship with counsel affected the outcome of his trial. Nothing in the record indicates how a better working relationship would have prevented petitioner’s conviction. Petitioner also contends that the inadequacy of counsel’s pretrial investigation rendered his assistance constitutionally ineffective. Yet petitioner does not state what exculpatory evidence an adequate investigation would have discovered or how this evidence would have affected the outcome of the innocence/guilt phase of the trial Thus, even if counsel’s pretrial investigation were constitutionally deficient, petitioner has not demonstrated any resulting prejudice. Petitioner next objects to trial counsel’s decision not to retain a psychiatrist or to request state funds to employ one. According to petitioner, this omission resulted in the state not examining whether petitioner was competent to stand trial and in counsel failing to present evidence of petitioner’s lack of intent to commit murder. Again, regardless of whether this decision by counsel rendered his assistance inadequate, petitioner has shown no prejudice. Under Oklahoma law, a defendant is competent to stand trial if he has “sufficient ability to consult with his attorney” and “a rational and actual understanding of the proceedings against him.” Lambert v. Oklahoma, 888 P.2d 494, 498 (Okla.Crim.App.1994) (quoting Middaugh v. Oklahoma, 767 P.2d 432, 434 (Okla.Crim.App.1988)); see also Bryson v. Oklahoma, 876 P.2d 240, 249 (Okla.Crim.App.1994), cert. denied, — U.S. -, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995). Under the United States Constitution, a defendant is competent to stand trial if “he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824 (1960) (per curiam) (internal quotation marks omitted). Petitioner does not point to any evidence that would show that he fell below this standard. Indeed, the record indicates petitioner was competent to stand trial. He testified before the trial that he understood the information and the nature of the charge, and his testimony during the trial about the crime and his responsibility was lucid and intelligible. As for petitioner’s mental state at the time of the murders, petitioner concedes that he “had the intent ... to rob the Douglass family,” but claims that he lacked the intent to kill. This argument, however, would have been irrelevant at the innocence/guilt phase of petitioner’s trial. Petitioner was charged with first degree felony murder. See Okla.Stat.Ann. tit. 21, § 701.7(B) (West Supp.1982). “[M]alice aforethought is not an element of first degree felony murder,” Stiles v. Oklahoma, 829 P.2d 984, 992 (Okla.Crim.App.1992); rather, “the underlying felony suffices as proof of intent to take away human life,” Freeman v. Oklahoma, 876 P.2d 283, 287 (Okla.Crim.App.), cert. denied, — U.S. -, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). Because petitioner’s state of mind at the time of the murders was not an issue relevant to his conviction for first degree murder, a psychiatrist could not have aided petitioner. Petitioner next contends that trial counsel was ineffective because he failed to preserve certain issues for appeal. Petitioner does not, however, explain which issues counsel failed to preserve or how he was prejudiced by counsel’s failure to raise them on appeal. Petitioner also argues that counsel did not request recordings of certain conferences in chambers with the trial judge. But he does not state when these conferences occurred, what was discussed, or how obtaining the recordings could have changed the outcome of the trial. There is therefore no basis for a finding that petitioner was prejudiced by these alleged trial counsel errors. Petitioner next claims that counsel was ineffective because he faded to seek the recu-sal of Judge Martin, who presided over petitioner’s trial and first sentencing hearing. Judge Martin was a lay minister of the same faith as Reverend Douglass, one of the murder victims. Petitioner alleges that, because of the potential for bias, counsel should have sought to have Judge Martin disqualified. The Oklahoma Court of Criminal Appeals reviewed this claim on petitioner’s direct appeal. See Hatch I, 662 P.2d at 1380-1381. Like that court, see id. at 1380, we do not place the same significance on this commonality of religion as petitioner. Moreover, our reading of Oklahoma law confirms that Judge Martin would not have been required to re-cuse himself in this case. See, generally, Okla.Stat.Ann. tit. 20, § 1401 (West Supp.1991) (establishing the standards for disqualification of a trial judge). We therefore conclude that, because petitioner “has not proven that the judge ... was biased,” Hatch I, 662 P.2d at 1380, he has suffered no prejudice. Petitioner alleges that counsel was ineffective because he failed to file for state post-conviction relief before filing petitioner’s federal habeas petition. When current counsel was appointed, however, this court held petitioner’s federal petition in abeyance so that counsel could file for state post-conviction relief. As a result of the state application, petitioner’s second death sentence was vacated, prior to Judge Cannon reimposing the death penalty at petitioner’s third sentencing proceeding. See Hatch III, 835 P.2d at 882. Thus, even though petitioner’s original counsel did not file for post-conviction relief, petitioner’s application was ultimately filed, and the Oklahoma courts adjudicated the claims presented therein. See id. Consequently, petitioner cannot claim prejudice from his original counsel’s failures in this regard. Finally, petitioner contends that his trial counsel was constitutionally ineffective for advising petitioner to waive his right to be tried by a jury. Under the first prong of the Strickland test, a defendant must show that his attorney “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Moreover, in evaluating an ineffectiveness claim, this court must presume that “the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). A defendant bears the burden of overcoming this presumption. Id. An attorney’s decision to waive his client’s right to a jury is a classic example of a strategic trial judgment, “the type of act for which Strickland requires that judicial scrutiny be highly deferential.” Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989) (per curiam). It constitutes a conscious, tactical choice between two viable alternatives. Carter v. Holt, 817 F.2d 699, 701 (11th Cir.1987); see also United States v. Ortiz Oliveras, 717 F.2d 1, 3 (1st Cir.1983) (“[T]actical decisions, whether wise or unwise, successful or unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance.”). For counsel’s advice to rise to the level of constitutional ineffectiveness, the decision to waive a jury must have been “completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.” Id. at 4; see also Carter, 817 F.2d at 701 (stating that an ineffectiveness claim based on counsel’s decision to waive a jury is viable only if the choice was “so unreasonable that no competent attorney would have chosen it”). In this case, petitioner has failed to show such incompetence. Instead, petitioner merely makes several conclusory allegations. For instance, he argues that “it is inconceivable that a jury would have sentenced [him] to death,” that “it is difficult to believe that a reasonable factfinder ... would have opted for death,” and that his attorney’s decision to waive the jury was “strategically inane.” These allegations, without more, do not show that counsel’s choice bore “no relationship to a possible defense strategy.” Rather, without any evidence to the contrary, we have no basis to conclude that counsel’s decision was unreasonable. Petitioner has therefore alleged no facts that, if proved, would demonstrate that this choice rendered counsel’s assistance constitutionally ineffective. In sum, petitioner has failed to demonstrate that he received ineffective assistance of counsel at the innocence/guilt phase of his trial. He has not shown that he suffered prejudice as a result of any of the several different grounds on which he claims counsel was constitutionally inadequate, or that counsel’s recommendation that petitioner waive his right to a jury was unreasonable. We therefore conclude that the district court did not err in refusing to conduct an evidentiary hearing or in concluding that petitioner had not alleged any conduct by counsel that violated the Sixth Amendment. IV. APPELLATE COURT ERROR After Judge Cannon vacated petitioner’s second death sentence in a state post-conviction proceeding and then resen-tenced petitioner to death, petitioner appealed to the Oklahoma Court of Criminal Appeals. See Hatch III, 835 P.2d at 880. In that appeal, petitioner raised twelve issues for review, of which the court examined only two. The court reasoned that it had originally remanded petitioner’s case following Hatch I, 662 P.2d at 1377, only for a review of petitioner’s individual culpability under Enmund. Hatch III, 835 P.2d at 882. Although Judge Cannon’s resentencing went beyond an Enmund review, the Court of Criminal Appeals stated that “the only matter before th[e] Court is th[e] validity of [petitioner’s resentencing] in light of En-mund.” Id. at 883. Petitioner now argues on habeas review that the state violated a “constitutional right to an appeal” because the Oklahoma Court of Criminal Appeals failed to consider all twelve of his allegations of error on appeal from his third sentencing hearing. Of course, petitioner cannot claim that the state denied him his right to substantive due process; there is no constitutional right to an appeal under the Due Process Clause. See Goeke v. Branch, — U.S. -, -, 115 S.Ct. 1275, 1277, 131 L.Ed.2d 152 (1995) (per curiam) (“ ‘[A] convicted criminal has no constitutional right to an appeal.’ ”) (quoting Ortega-Rodriguez v. United States, — U.S. -, -, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (1993) (Rehnquist, C.J., dissenting)); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) (“[I]t is well settled that there is no constitutional right to an appeal.”); McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 915, 38 L.Ed. 867 (1894) (“A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law.”). Petitioner’s due process claim regarding his right to an appeal must therefore focus on whether the state comported with the requirements of procedural due process. While “it is not the province of a federal habeas court to reexamine state court determinations on state law questions,” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); see also Tucker v. Makowski, 883 F.2d 877, 882 (10th Cir.1989) (per curiam), a state law may create a liberty interest that cannot be denied without-offending due process principles, see Clemons v. Mississippi, 494 U.S. 738, 746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990); Ross v. Oklahoma, 487 U.S. 81, 91, 108 S.Ct. 2273, 2279-80, 101 L.Ed.2d 80 (1988). Thus, we must ask whether Oklahoma deprived petitioner of any state-created “entitlement.” Cf. Clemons, 494 U.S. at 746, 110 S.Ct. at 1447; Cabana v. Bullock, 474 U.S. 376, 387 n. 4, 106 S.Ct. 689, 697 n. 4, 88 L.Ed.2d 704 (1986), overruled in part on other grounds by Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). Under Oklahoma law, petitioner was entitled to an appeal from his conviction and sentence. See Okla.Stat.Ann. tit. 22, § 1051(a) (West 1986) (“An appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him.”); id. tit. 21, § 701.13(A) (West Supp.1995) (“Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Oklahoma Court of Criminal Appeals.”). In this case, however, petitioner did in fact receive an appeal. The Oklahoma Court of Criminal Appeals reviewed two of his claims and affirmed the conviction. Hatch III, 835 P.2d at 880. Thus, petitioner cannot claim that he was entirely denied his right to appeal. Instead, petitioner contends that, by reviewing only two of his twelve claims, the state deprived him of an adequate appeal. Cf. Campbell v. Blodgett, 997 F.2d 512, 522-25 (9th Cir.1992) (reviewing a petitioner’s claim that the State of Washington deprived him of procedural due process because, although the state supreme court conducted a mandatory proportionality review of his death sentence, the court did so in an inadequate manner), cert. denied, — U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994). To succeed on such a claim, petitioner must show that Oklahoma law entitled him to appellate review of all the issues that he raised. Most of the Oklahoma statutes and rules discussing procedural requirements for appeals in Oklahoma state court delineate the parties’ duties, not the courts’ responsibilities. See, e.g., Okla. Const. art. 7-A, § 5 (discussing appeals to appellate division); Okla.R.Crim.App. 1.0 et seq. (establishing rules of procedure for the Oklahoma Court of Criminal Appeals). Where Oklahoma law does broach the subject of the Oklahoma Court of Criminal Appeals’ duties, the regulations generally address the formalities of internal court procedure. See, e.g., Okla. Stat.Ann. tit. 20, § 49 (West 1991) (specifying how the court shall file its opinions); Okla.R.Crim.App. 3.13 (establishing the voting procedure for the court’s decisions). While petitioner would argue that Oklahoma law constrains the Court of Criminal Appeals’ powers, the language of the relevant statutes and rules give the court rather sweeping discretion. According to Oklahoma law, the Court- of Criminal Appeals “may” review “any decision of the [lower] court ... made in the progress of the case.” Okla.Stat.Ann. tit. 22, § 1051 (West 1986). The court’s powers also include the ability to “ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” Id. tit. 20, § 42 (West 1991). And the Court of Criminal Appeals has construed these statutes as giving it “the authority to determine, in a criminal matter, when it has the power to proceed.” Duvall v. Oklahoma, 871 P.2d 1386, 1388 (Okla.Crim.App.1994). In light of the broad powers afforded the Court of Criminal Appeals under Oklahoma law, as well as the lack of mandatory responsibilities imposed on the court by statute, we conclude that criminal defendants in Oklahoma are not entitled to a review of every claim of error made in their appeals to that court. ■ Consequently, the Court of Criminal Appeals’ decision not to review ten of petitioner’s allegations in his state appeal did not deprive petitioner of his constitutional right to procedural due process. V. RESENTENCING ERROR A. When petitioner was originally tried in Oklahoma in 1980, he waived his right to a jury trial. Petitioner asserts that, after Judge Cannon vacated his sentence, he requested a jury for his resentencing and that Judge Cannon denied his request. Petitioner now claims that Judge Cannon’s denial of his request for a jury deprived him of due process. First, we must note that petitioner can claim no substantive constitutional right under the Due Process Clause to have his punishment assessed by a jury. “Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected.” Clemons, 494 U.S. at 745, 110 S.Ct. at 1446; see also McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986) (“[Tjhere is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.”). As a result, like petitioner’s claim concerning the review of his state appeal, any constitutional right must derive from a state law entitlement. To demonstrate an entitlement under Oklahoma law, petitioner attempts to analogize this case to Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the jury had imposed on defendant a forty year prison term, the mandatory minimum sentence for his offense under Oklahoma’s habitual offender statute. Id. at 344-45, 100 S.Ct. at 2228-29. The Oklahoma Court of Criminal Appeals subsequently declared the habitual offender statute under which Hicks was sentenced unconstitutional. Thigpen v. Oklahoma, 571 P.2d 467, 471 (Okla.Crim.App.1977). That court nevertheless affirmed Hicks’ sentence on appeal, “reasoning that the petitioner was not prejudiced by the impact of the invalid statute, since his sentence was within the range of punishment that could have been imposed in any event.” Hicks, 447 U.S. at 345, 100 S.Ct. at 2229. The Supreme Court reversed Hicks’ sentence. Noting that state law had vested the discretion of sentencing in juries, the Court found it “[injcorrect to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law.” Id. at 346, 100 S.Ct. at 2229. To the contrary, the “liberty interest [created by the state] is one that the Fourteenth Amendment preserves against arbitrary deprivation.” Id. Because petitioner had a state right to be sentenced by a jury but was in fact sentenced by the appellate court, the state had violated Hicks’ right to procedural due process. Id. at 347, 100 S.Ct. at 2230; cf. Carbray v. Champion, 905 F.2d 314 (10th Cir.1990) (discussing Hicks), cert. denied, 498 U.S. 1072, 111 S.Ct. 796, 112 L.Ed.2d 858 (1991). The Court’s decision in Hicks, of course, did not create any general entitlement to be sentenced by a jury that might be applicable to petitioner. Indeed, Hicks was sentenced under a different statute than petitioner and claimed a distinct infringement on his right to a jury. But Hicks reinforces the appropriate analytical framework for our inquiry, namely that we must examine Oklahoma law to determine whether petitioner’s due process rights were unconstitutionally impaired. Petitioner concedes that he waived his right to a jury trial in the innocenee/guilt phase of his trial before Judge Martin. Under Oklahoma law, “[i]f the trial jury has been waived by the defendant and the state, ... the sentencing proceeding shall be conducted before the court.” Okla.Stat.Ann. tit. 21, § 701.10 (West Supp.1982) (amended 1987, 1989, 1992). Because petitioner had waived his right to a jury trial at the innocence/guilt phase, Judge Martin was also the factfinder for petitioner’s first sentencing proceeding. Petitioner argues, however, that his initial waiver was inoperable after the first trial ended, so that when his case was remanded, he should have been entitled to request a jury. Under Oklahoma law, “[a] judgment reversed and remanded with directions to grant a new trial, results, except for questions of law settled by the proceedings in error, in the action standing as if no trial had been held.” Seymour v. Swart, 695 P.2d 509, 512-13 (Okla.1985); see also Okla.Stat.Ann. tit. 22, § 951 (West 1986) (“The granting of a new trial places the parties in the same position as if no trial had been had.”) (amended 1989). Consequently, “a waiver of a jury trial is not binding on a subsequent trial if the right to trial by jury is otherwise applicable.” Seymour, 695 P.2d at 512. Here, however, neither the appellate court in Hatch I nor the state district court on post-conviction review ordered a new trial. Instead, they ordered that petitioner be re-sentenced. In a capital murder case, a defendant has the right to be sentenced before the “trial jury.” Okla.Stat.Ann. tit. 21, § 701.10 (West Supp.1982) (amended 1987, 1989, 1992). Here, however, there was no “trial jury” because the innocence/guilt phase of petitioner’s trial was conducted before a judge. The same rule that allowed Judge Martin to sentence petitioner at his first sentencing hearing still operated when only-petitioner’s sentencing was repeated: “If the trial jury has been waived by the defendant and the state, ... the sentencing proceeding shall be conducted before the court.” Id. Thus, unlike in Seymour, the right to a trial by jury was not “otherwise applicable.” Accordingly, petitioner had no entitlement under Oklahoma law to be sentenced by a jury at his third sentencing proceeding. B. Petitioner also claims that Oklahoma laws enacted subsequent to the murders but applied in petitioner’s case “substantially disadvantaged” him and therefore violated the Ex Post Facto Clause. See U.S. Const. art. 1, § 10, cl. 1. “The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.” Landgraf v. USI Film Prods., — U.S. -, -, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). But “[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” Gibson v. Mississippi 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896). The Supreme Court recently examined the scope of the Ex Post Facto Clause in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). At issue in Collins was a Texas statute allowing for the reformation of an improper jury verdict. Id. at 39, 110 S.Ct. at 2717-18. Although the Texas legislature had enacted the law after the defendant had committed his offense, the Texas appellate court applied the new statute in affirming the defendant’s conviction. Id. at 40, 110 S.Ct. at 2718. The defendant argued to the Supreme Court that, even though the new law was procedural and not substantive, the appellate court’s use of the statute was unconstitutional because the new law altered a “substantial protection” for criminal defendants. Id. The Court held that Texas had not violated the defendant’s rights under the Ex Post Facto Clause. Id. at 37, 110 S.Ct. at 2716. The Court examined two of its prior cases, Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898). Kring had defined an ex post facto law as one that “alters the situation of a party to his disadvantage,” Kring, 107 U.S. at 228-29, 2 S.Ct. at 449, while Thompson had held that a law violated the ex post facto prohibition because it “deprive[d] [the defendant] of a substantial right involved in his liberty,” Thompson, 170 U.S. at 352-53, 18 S.Ct. at 623. The Court noted that the language of these cases had “imported confusion into the interpretation of the Ex Post Facto Clause.” Collins, 497 U.S. at 45, 110 S.Ct. at 2721. After showing that Thompson’s “substantial rights” language had departed from the original meaning of the Clause, the Court overruled Kring and Thompson, id. at 47-52, 110 S.Ct. at 2721-24, and characterized many of the decisions using similar language as saying “that by simply labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause,” id. at 46, 110 S.Ct. at 2721. The Court then reiterated the definition of an ex post facto law originally formulated in Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925): A law violates the ex post facto prohibition if it “make[s] innocent acts criminal, alter[s] the nature of the offense, or increased] the punishment.” Collins, 497 U.S. at 46, 110 S.Ct. at 2721; see also Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344 (1977); Stephens, 19 F.3d at 500. The Court has subsequently reaffirmed its holding in Collins, stating that “the [Ex Post Facto] Clause is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” California Dep’t of Corrections v. Morales, — U.S. -, -, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (quoting Collins, 497 U.S. at 43, 110 S.Ct. at 2719-20). With these principles in mind, we turn to petitioner’s assertions of error. Petitioner’s first ex post facto claim is that the state violated his rights by not performing a proportionality review after his third sentencing hearing. At the time of the murders, Oklahoma law required the Oklahoma Court of Criminal Appeals, upon every appeal from a death sentence, to consider “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Okla.Stat.Ann. tit. 21, § 701.13(C)(3) (West Supp.1982) (amended 1985). The Oklahoma legislature deleted that provision in 1985. See id. § 701.13(C) (West Supp.1995). The Oklahoma Court of Criminal Appeals did not conduct a proportionality review following petitioner’s third sentencing proceeding, see Hatch III, 835 P.2d at 880, despite petitioner’s protestations that his sentence was disproportionate to Mr. Ake’s life sentence. This action does not violate the Ex Post Facto Clause. The penalty for first degree murder, both before and after the legislature changed section 701.13(C)(3), was death. Petitioner cannot “escape the ultimate burden of establishing that the measure of punishment itself has changed.” Morales, — U.S. at -, 115 S.Ct. at 1603 n. 6. Here, the legislature’s action merely altered “the procedures by which [the] case is adjudicated, as opposed to [altering] the substantive law of [the] crime[ ].” Collins, 497 U.S. at 45, 110 S.Ct. at 2720. The Ex Post Facto Clause does not “require the sentence be carried out under the identical legal regime that previously prevailed.” Morales, — U.S. at -n. 6, 115 S.Ct. at 1603 n. 6. We therefore hold that the Oklahoma Court of Criminal Appeals’ decision not to conduct a proportionality review did not violate the Ex Post Facto Clause. Petitioner’s second ex post facto claim concerns the law governing the Oklahoma Court of Criminal Appeals’ procedures for remand. When petitioner committed the crime, Oklahoma law required the Court of Criminal Appeals either to affirm the sentence of death or to set the sentence aside and modify the sentence to life imprisonment. Okla.Stat.Ann. tit. 21, § 701.13(E) (West 1983); see also Eddings v. Oklahoma, 688 P.2d 342 (Okla.Crim.App.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1750, 84 L.Ed.2d 814 (1985). In 1985, however, the Oklahoma legislature gave the court the additional option of remanding the case for resentencing. See Okla.Stat.Ann. tit. 21, § 701.13(E)(2) (West Supp.1995). Petitioner’s first two appeals to the Oklahoma Court of Criminal Appeals — stemming from his first two sentencing hearings — were decided in 1983 and May 1985, respectively. See Hatch I, 662 P.2d at 1377; Hatch II, 701 P.2d at 1039. The new version of section 701.13(E) did not become effective, however, until July 16, 1985. See Okla.Stat.Ann. tit. 21, § 701.13(E) (West Supp.1995). Thus, for there to have been an ex post facto violation, the change in section 701.13(E) must have somehow affected the Oklahoma Court of Criminal Appeals’ disposition of petitioner’s case subsequent to July 16, 1985. The record is clear that the new law had no such impact. The only time subsequent to July 16, 1985, that petitioner’s sentence was altered or amended was when Judge Cannon determined that petitioner’s application for post-conviction relief properly alleged error. When an Oklahoma court finds in favor of an applicant for post-conviction relief, “it shall vacate and set aside the judgment and sentence and discharge or resen-tence him, or grant a new trial,'or correct or modify the judgment and sentence as may appear appropriate.” OMa.Stat.Ann. tit. 22, § 1085 (West 1986). Judge Cannon’s resen-tencing authority flowed from section 1085, not section 701.13(E)(2). Thus, the change to section 701.13(E) never affected petitioner’s third sentencing proceeding; he therefore can show no ex post facto violation. C. Petitioner next alleges that the state court violated his right to due process when it heard evidence of unadjudicated crimes in imposing his third death sentence. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the trial judge considered evidence that the defendant had committed several burglaries for which he had not been convicted. Id. at 244, 69 S.Ct. at 1081-82. The trial judge had cited this evidence in sentencing the defendant to death despite the jury’s recommendation that he receive life in prison. Id. In reviewing the conviction, the Supreme Court noted that “[t]he belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” Id. at 247, 69 S.Ct. at 1083. The Court therefore held that it was constitutionally permissible for a sentencing judge to seek information from out-of-court sources indicating that the defendant had participated in unadjudicated offenses. Id. at 251-52, 69 S.Ct. at 1085-86. The Court has since discredited some of the logic that undergirded its decision in Williams. Most notably, in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (opinion of Stevens, J.), the Court repudiated Williams' assumption that a death penalty is constitutionally indistinguishable from other forms of punishment. Id. at 357, 97 S.Ct. at 1204 (noting that a majority of the Court had “recognized that death is a different Mnd of punishment from any other which may be imposed in this country.”). The Court has not, however, called into question the essence of Williams ’ holding — that a judge’s consideration of evidence of unadjudieated crimes in imposing the death sentence does not violate a petitioner’s due process rights. See Nichols v. United States, — U.S. -, -, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745 (1994) (citing Williams and stating that “[sentencing courts have not only taken into consideration a defendant’s prior convictions, but have also considered a defendant’s past criminal behavior, even if no conviction resulted from that behavior.”). Indeed, the Supreme Court has consistently ruled that “relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party.” Barefoot, 463 U.S. at. 898, 103 S.Ct. at 3397. We therefore follow. Williams and join three other Circuit Courts in holding that the admission -of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process. See Devier v. Zant, 3 F.3d 1445, 1464-65 (11th Cir.1993) (“[I]t is acceptable to consider evidence of crimes for which a defendant has been indicted but not convicted. Activities for which there has been no charge filed can be considered as well.”), cert. denied, — U.S. -, 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995); Coleman v. Risley, 839 F.2d 434, 459 (9th Cir.1988) (“We have long held that the due process clause does not preclude the sentencing judge from considering evidence of prior criminal conduct not resulting in a conviction.”), rev'd on other grounds sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir.) (en banc), cert. denied, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989); Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (“[T]he admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate the eighth and fourteenth amendments.”), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987). D. Traditionally, criminal defendants have challenged certain sentences as being disproportionate to the offense of conviction. In this ease, however, petitioner contends that the Constitution requires that he receive a sentence proportional to others who have committed the same offense. In other words, petitioner believes that his sentence should be no more severe than his codefendant, Glen Ake, because he asserts that Ake is more culpable for the murders. In Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Supreme Court addressed “whether the Eighth Amendment ... requires a state appellate court, before it affirms a death sentence, to compare the s